from the wtf-indeed dept

This past week, on This American Life, the first 20 minutes or so are the incredible story of just how screwed up the ATF continues to be (the Bureau of Alcohol, Tobacco and Firearms). Much of this has been reported on over the past year and a half by reporters in Milwaukee (and investigated by Congress), but it's absolutely worth listening to the details -- which you can do over on the This American Life page (I'd post the embed here, but unfortunately This American Life does not yet appear to support HTTPS, so we can't). The story is all kinds of stunning, including the insane fact that most of the details came out, and the reporters only began their investigation, because some undercover ATF agents in Milwaukee had trashed the property they were renting, and refused to pay the rent or damages to the landlord -- even threatening the landlord, claiming he was harassing federal agents by asking for the rent:

John Diedrich: I get a call. And it was from a landlord, a guy named Dave Salkin. And Dave Salkin owns this place that he, unbeknownst to him, rented to the ATF. Didn't know who they were, they were undercover agents. And they had trashed his place, and they were behind on rent. They had threatened him. And I said, where are you, I'm coming right now.

Ira Glass: While they were undercover, agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives basically ripped up his place. Salkin said at the time that they owed $15,000 in damages and back rent. Later he said it was more. When he tried to collect, they didn't pay up. In fact, an ATF lawyer warned him that if he kept asking for the money, it could be seen as harassing federal agents.

The other thing that becomes clear in all of this is that these "undercover" ATF agents aren't just sloppy and stupid, they seem to go out of their way to be ineffective and dangerous.

Ira Glass: And they were robbed. These agents whose job it was to get guns out of the hands of criminals had three guns that were stolen out of an agent's car while he was parked at a coffee shop. These included a fully automatic rifle. This is a machine gun, the kind that normally only law enforcement and military can legally have.

Not long after that, the store itself was burglarized of $39,000 in clothes, jewelry, and merch, reportedly, because the ATF had not bothered to do much to secure the store and just did not seem to care. Nobody was minding the store, literally.

John Diedrich: The ATF had no working burglar alarm on their building. So it was sort of, instead of a smash and grab, it was just this sort of like slow burglary. The neighbors report at one point, once they were able to get in-- again, no burglar alarm-- they kept the door propped open with a shoe. And they were just kind of taking stuff out.

And the word sort of spread. Hey, this place is just open. Nobody's there. We can just go get stuff. And at one point they just pulled up a U-Haul. And they were just sort of emptying this. And this is over several days. And then even--

Ira Glass: Renting a U-Haul is such a crazy move, because is it means that somebody had to go and decide, I'm going to rent a truck. That's how slow this burglary is, that you can do a rental.

John Diedrich: Yeah, exactly. And there's no sort of concern that you're going to be busted at that point, and just say, OK, I can only carry so much in my arms. Let's get something bigger. Let's get a U-Haul.

Ira Glass: The same day the burglary was reported, an ATF ballistic shield, the kind that they would use to raid a house or something, was turned in by a scrapper at a Milwaukee police station. One item that was just left lying around in the store after the robbery for anybody to pick up and read-- it was there when reporter John Diedrich walked through-- was a secret ATF document listing the names of undercover agents, their undercover vehicles from several law enforcement agencies in Milwaukee.

There's a lot more like this. Including potential copyright infringement:

Ira Glass: And they distributed flyers with the store's logo, which was a skull with angel wings made from assault rifles and knives with the words Buy, Sell, Trade, wink, wink. Federal agents actually ripped off the logo from the Sylvester Stallone film, The Expendables, possibly in violation of their copyright.

The story details just how incredibly counterproductive all these efforts were. Since they were paying super high prices for guns, people would suddenly start stealing guns just because the ATF was making them so valuable. And, despite the ATF pretending otherwise, the case in Milwaukee was hardly a one-off situation.

Raquel Rutledge: And as we started looking, really, truly, we came back to one other-- you're not going to believe this. I mean, we were shocked. I don't think we expected to find this going on. Absolutely not, did we expect to find that it would go on elsewhere, because you can't imagine this would be part of a playbook or an MO of a federal agency. So it was stunning to find. Had they been burglarized? Did they trash the landlord's place?

We found in Portland the lady just said, I am so glad you called. She said, I have not known what to do. She said, they left my place in shambles. She had photos of what they left it like-- I mean, like a college fraternity or something. Just trash everywhere, they tore out some walls and they rewired some stuff and caused a leaky roof. She estimates her damages were probably $20,000 roughly, $20,000, $25,000. So that, you think, how does that happen? Is that, again, part of the playbook?

Ira Glass: Raquel and John looked into ATF storefronts in Wichita, Portland, Oregon, Pensacola, Albuquerque, Atlanta, and Phoenix. Some of the Milwaukee problems they found examples of in those other cities? Agents paying extra high prices for guns, buying stolen goods, criminals committing burglaries in the neighborhoods around the stores and then selling the stuff to the ATF. Raquel and John say that the quality of the convictions from these operations around the country, the kinds of people that the ATF was catching were mostly small fry, just like in Milwaukee. The ATF store in Pensacola was robbed just like the Milwaukee store was, twice.

There's a lot more in the story -- and it's totally worth listening to. But the most fascinating point of all may be the one right up front in the story, and then reinforced at the end. None of this likely would have come out if it were not for the unpaid rent.

It wasn't the squid tattoos or the low-IQ employees or getting robbed over and over. It wasn't the way they caught and charged suspects. It was that landlord in Milwaukee. If they hadn't trashed his place, or if they had just paid him promptly to repair it instead of fighting him over every penny, apparently, he wouldn't have called the newspaper. John and Raquel say the whole thing might never have come to light.

The whole effort has resulted in some attempts to actually disband the entire ATF, which might not be such a bad idea. While we hadn't been following the agency that closely (and hadn't been aware of all of these fake storefronts and the crazy stories behind them), in the past we've reported on how the ATF made up an entire robbery plot in order to entrap a group of poor young men in a "crime" that wouldn't have existed, but for the ATF's fantasy.

It would be nice to trust law enforcement officials, but they keep giving us reasons not to trust them at all.

from the because-the-doj-can't-lose dept

The self-assured nature of federal prosecutors can be quite insane. We've talked many times in the past about how the criminal justice system is completely rigged against anything remotely looking like fairness. From grand juries to plea bargains to sentencing guidelines, the entire system is designed to make anyone who enters it presumed guilty until their spirit is crushed and destroyed. In the last few years we've noted an even more disturbing trend: law enforcement creating their own plots, in which they lure (often gullible or marginalized) individuals into a convoluted criminal "plot" in which nearly all of the other players are fellow law enforcement folks (or informants). They then build up this big plot... wait until it's about to go off (knowing it'll never actually happen) and then arrest those they lured into it. It has happened over and over and over and over and over and over and over and over and over and over and over and over again. Courts have found that this is technically not "entrapment," even though it sure appears to come close to it.

That's why we were quite happy to see a federal judge finally call out one of these questionable plots. Earlier this year, we wrote about Judge Otis Wright (whose name you may recall from the beatdown he gave Team Prenda) calling out one of the ATF's homegrown criminal plots for "outrageous government conduct" in creating a "made up crime." Wright detailed how the government picked details of the entirely fictional plot at levels to guarantee felony charges, and also accused it of "trawling... poverty-ridden areas" in a "fishing expedition" dangling huge riches on people who have no money. He further noted that nearly all of the elements of "the crime" were done by the ATF:

But for the undercover agent’s imagination in this case there would be no crime. The undercover agent invented his drug-courier persona, the stash house, the 20 to 25 kilograms of cocaine supposedly inside the stash house, the two individuals supposedly guarding the stash, the need to use weapons, and the idea of robbing the stash house. He even provided the putative safe house and getaway van. Dunlap brought little to the table besides his sheer presence and perhaps the hope of being able to obtain some quick cash.

[....] ...here, the undercover agent provided a getaway van, putative safe house, and—most important of all—the entire scheme and its fictitious components. He also alleviated Defendants’ logistical and safety concerns when he “proposed that he would be inside the stash house at the time of the robbery . . . .” ...

Reassignment is warranted “to ensure not only the existence, but the
appearance, of impartiality,” such as when “the district judge . . . may be
viewed as having assumed the role of advocate.” ...
Here, as Dunlap himself has suggested..., the district court’s tone
and actions have created the appearance of hostility to the government.

As set forth earlier, the court’s tone has not been one of impartiality. To
be sure, a holding of “outrageous” conduct necessarily entails strong
language—condemnation is built into the very standard. But even so, the
court’s comments are extreme: accusing the government of
“lead[ing] us into temptation”; of “stoop[ing] to the same level as the
defendants it seeks to prosecute” and “creating crime”; of targeting people
simply for being poor or for having bad thoughts; and of being “cold-blooded
and heartless.” Similar is the court’s refrain that the crimes of conviction were
“fake,” “trumped up,” “cut from whole cloth,” or “made up”—after all, it was
Hudson who initiated contact, the defendants showed up with guns, one of
which Whitfield boasted could cut a man in half.... Similar, too,
is the court’s repeated criticism of the investigation as a “trawling” expedition
where bait was “dangled” “irresistibl[y]” before poor, ignorant defendants.

It is not just that the substance of the court’s accusations is wrong:
merely erring is not grounds for reassignment. It is that the tone creates the
appearance of hostility toward a government “oppressor.” ... And that tone is not limited to the court’s description of historical
facts: it has been also dismissive to government counsel during hearings.

In short: because the judge called out the ATF and the DOJ for its outrageous behavior, that proves that the judge is biased and therefore unfit to hear the case. Only judges that accept our outrageous behavior are reasonable and should be allowed to hear our cases.

This is the attitude of federal prosecutors. The entire system is already rigged to support us, so if a judge somehow actually pushes back on something we did, then clearly he's the problem, rather than our outrageous behavior.

from the finally dept

For years now, we've been writing about the FBI's now popular practice of devising its own totally bogus "terrorist plots" and then convincing some hapless individual to join the "plot" only to later arrest them to great fanfare, despite the fact that everyone (other than the arrested person) involved was actually an FBI agent, and there was no actual danger or real plot (or real terrorists) involved. In fact, we just had yet another such story. We've written about similar occurances over and over and over and over and over and over and over and over and over and over and over again -- and, depressingly, it seems that courts repeatedly uphold this practice as not being entrapment. Many have been questioning why the FBI is spending so much time and money creating fake terrorist plots that don't seem to protect anyone (but do give the FBI/DOJ lots of big headlines about "stopping terrorism!"), but the courts have basically let it go.

However, it finally appears that one judge thinks these kinds of things go too far -- and it happens to be Judge Otis Wright, whose name you may recall from being the first judge to really slap down Prenda law for its obnoxious copyright trolling practices. Reader Frankz alerts us to the news Wright has dismissed a case involving the Bureau of Alcohol Tobacco and Firearms (ATF) for a similar "made up crime" and completely trashed the government for doing these kinds of things. As with his order in the Prenda case, I urge you to read his full dismissal which is granted for "outrageous government conduct." Judge Wright, it appears, is not one to hide his opinions about those who abuse the legal system. The ruling kicks off with a hint of where this is heading:

“‘Lead us not into temptation,’” Judge Noonan warned. United States v. Black,
733 F.3d 294, 313 (Noonan, J., dissenting). But into temptation the Government has
gone, ensnaring chronically unemployed individuals from poverty-ridden areas in its
fake drug stash-house robberies. While undoubtedly a valid law-enforcement tool
when employed to target or prevent demonstrated criminal enterprises, reverse stings
offend the United States Constitution when used solely to obtain convictions.

This case didn't involve "terrorism" like the FBI cases, but rather a similar "reverse sting" in which an ATF agent pretends to be a cocaine courier, tells some dupes about a "stash house" he knows about and then pushes them to rob the house. The ATF agent convinced a couple of guys, Cedrick Hudson and Joseph Whitfield, to take part, and they eventually brought along a third guy, Antuan Dunlap, after the ATF guy kept asking them to bring along associates. The group, lead by the ATF agent's detailed plan, agreed to rob this house and then were all arrested. It's the third guy, Dunlap, who argued that the government was engaged in outrageous conduct. The government claims that Dunlap bragging about being involved in past robberies means that it was perfectly reasonable to arrest him here, but Wright isn't having it:

the Court finds that the Government’s extensive involvement
in dreaming up this fanciful scheme—including the arbitrary amount of drugs and
illusory need for weapons and extra associates—transcends the bounds of due process
and renders the Government’s actions outrageous.

Wright is not persuaded by the fact that Dunlap apparently bragged about his criminal past to the ATF agent, noting the reality of the situation:

It makes little sense to justify
the Government’s capricious, stash-house scheme at its inception by what Thompson
later learned about Dunlap. In a situation where an apparently experienced cocaine
courier is boasting to some small-time crooks about the chance to hit the mother lode,
it is only human nature that the individual is going to try to impress the courier with
wild tales of past criminal conduct. In this case, there is no evidence that Dunlap
actually robbed a Western Union or Nix. But even if he did, Thompson did not learn
about Dunlap’s alleged past crimes until after Dunlap joined the doomed-to-fail crew.
The Government cannot bootstrap this post hoc knowledge to justify the scheme from
the beginning.

Those commercial robberies also bear little upon the fictitious stash-house
scheme or the home invasions the ATF sought to eliminate. In fact, when Dunlap was
bragging about this past exploits, he disavowed any connection to drugs:

So contrary to the Government’s contention, Dunlap’s
“admissions” only served to demonstrate that he had no propensity to commit drug
crimes—the entire subject of the reverse sting.

Judge Wright clearly sees how allowing this kind of activity is going to lead to serious problems, especially as law enforcement can prey on desperate individuals, coax them into various plots, and then arrest them:

Allowing after-the-fact knowledge to mitigate the Court’s concerns in a
situation like this also creates a perverse incentive for the Government. It encourages
the Government to cast a wide net, trawling for crooks in seedy, poverty-ridden
areas—all without an iota of suspicion that any particular person has committed
similar conduct in the past. And if the Government happens to get it right and catch
someone who previously engaged in crime, the courts will place their imprimatur on
the whole fishing expedition.

The Court declines the invitation to endorse this nab-first-ask-questions-later
approach. While this situation is a win-win for the Government, it is really only lose-lose for the unwitting individuals unlucky enough to fall into the Government's net. If
they have never committed criminal activity in the past but agree to participate in the
fake robbery, they go to prison—unless they can surmount the Everest-like hurdle to
establish an entrapment defense.

This is important, because many people try to fight back against these kinds of cases with claims of entrapment, but Judge Wright correctly notes that (unfortunately) the bar to meeting an entrapment claim is ridiculously high. However, it's pretty obvious that there is no crime here absent the government's own intervention:

But for the undercover agent’s imagination in this case there would be no
crime. The undercover agent invented his drug-courier persona, the stash house, the
20 to 25 kilograms of cocaine supposedly inside the stash house, the two individuals
supposedly guarding the stash, the need to use weapons, and the idea of robbing the
stash house. He even provided the putative safe house and getaway van. Dunlap
brought little to the table besides his sheer presence and perhaps the hope of being
able to obtain some quick cash.

.... Despite the Supreme Court’s admonition, the ATF manufactured this entire
crime. It did not infiltrate an ongoing criminal enterprise, as there is no indication that
Hudson, Whitfield, and Dunlap had any previous criminal affiliation between them.

Furthermore, Judge Wright notes that the government encouraged the activity, even if it wasn't to the level of entrapment, it was still quite clearly the key driver of the entire "crime" and that's what makes it "outrageous."

...here, the undercover agent
provided a getaway van, putative safe house, and—most important of all—the entire
scheme and its fictitious components. He also alleviated Defendants’ logistical and
safety concerns when he “proposed that he would be inside the stash house at the time
of the robbery . . . .” ...

Thompson also goaded Defendants to acquire weapons. He repeated several
times over the course of the two-month ruse that “at least one of the individuals
[guarding the nonexistent stash house] always carried a firearm.” ...
(“SA Thompson asked if HUDSON and WHITFIELD’s associates could handle it if
something happened during the robbery (referring to someone getting shot).”); ...
(“SA Thompson asked if they could get him something (referring to a firearm), and
WHITFIELD indicated he could get SA Thompson a little .380.”); ... (“SA
Thompson asked about WHITFIELD getting him a little ‘strap’ (referring to a firearm
that was previously discussed) and SA Thompson offered to cash him out (meaning
pay him for the firearm). WHITFIELD indicted [sic] he could get SA Thompson
something.”); ... (“SA Thompson next mentioned that there was always two
individuals in the stash house and at least one of them was always armed, but as far as
he knew, both could be armed.”); ... (“SA Thompson later indicated that the
occupants of the stash house may not go down very easy.”); ... (“Like
I said the one fool he is always strapped, but the other dude I think he might be, I just
don’t know.”).) With Thompson continually sounding the war horn, it is not
surprising that Defendants showed up to the final meeting with two weapons.

The undercover agent’s continued participation, assurances, and suggestions
over the course of the two-month period made him “a partner in the criminal activity”
rather than a mere “observer.” See Black, 733 F.3d at 308. His input was likewise
“necessary” for Defendants to carry out their doomed plan, since but for Thompson’s
imagination, there would have been no fictitious stash-house robbery to begin with—
let alone the need for guns and extra associates.

Judge Wright points out that the government's attempt to brush all of this away by noting the guys were willing participants is bogus, since they're effectively preying on the extremely poor with promises of easy money. And, given the situation, the government can manipulate all the factors to basically nab anyone.

In these stash-house cases, the Government’s “participation in the offense
conduct” is what makes them particularly repugnant to the Constitution. Everything
about the scheme—and therefore almost everything bearing upon a defendant’s
ultimate sentence—hinges solely on the Government’s whim. Why were there not 10
kilograms in the stash house? Or 100? Or 1,000? Why were the guards allegedly
armed—necessitating that Defendants bring weapons along with them? All of these
factors came down to the ATF and the undercover agent alone. That sort of
arbitrariness offends the Constitution’s due-process demands.

In fact, Judge Wright notes that all of these choices by the ATF were not accidental. The push to get them to bring drugs, the amount of cocaine being discussed, each help the government pile on charges and potential time in jail. And while the government claims that defendants can argue a lack of intent in their own defense, Judge Wright notes that very few of these cases ever go to trial, because with the huge number of years in jail that people face, they almost always take a plea deal.

With the capriciously selected amount of
drugs, a defendant has the proverbial Sword of Damocles hanging over his head. He
is not likely to let it fall and face the considerable prison time that surely awaits him if
he loses at trial—especially when the Government has spent, like in this case, months
recording conversations inculpating him in the trumped-up conspiracy.

Judge Wright notes the absurdity of sentencing guidelines based on a crime that is entirely made up by the government:

But the Government’s rationalization is hopelessly circular. The Government
seeks to prosecute Dunlap for a fake crime it cut from whole cloth. To justify the
serious sentence Dunlap faces as the result of its imagination, the Government
attempts to use its creation of the crime, including the need to establish the undercover
agent’s credibility, as the validation for the amount of drugs. The amount of drugs
then justifies the sentence. But since the Government created each necessity and
justification, the sentence no longer bears a proportional relationship to the
defendant’s culpability—just the Government’s imagination. Something more than
mere bootstrapping is needed for the Government to take 15-plus years away from
Dunlap’s life.

The Government’s argument also proves the problem with this whole scheme.
The Government asserts that it dreams up these stash-house robberies to catch people
inclined to commit home invasions. But the Government must make the robbery
scheme tempting enough to nab a potential criminal. The Government thus sets the
drug amount at a level apparently it knows that no poverty-ridden individual could
pass up. So the Government essentially admits that this ruse is not meant to simply
skim off those individuals likely to commit similar crimes; rather, it is designed to
never fail. And the high number of fake stash-house convictions the Government has
attained confirms this strategy.

Judge Wright doesn't mince words about the impact of this case:

Zero. That’s the amount of drugs that the Government has taken off the streets
as the result of this case and the hundreds of other fake stash-house cases around the
country. That’s the problem with creating crime: the Government is not making the
country any safer or reducing the actual flow of drugs. But for the Government’s
action, the fake stash house would still be fake, the nonexistent drugs would still be
nonexistent, and the fictional armed guards would still be fictional.... Instead,
the Government comes close to imprisoning people solely because of their thoughts
and economic circumstances rather than their criminal actions.

So, the whole operation does nothing to take drugs off the street or stop any real crime. Instead? It just costs us all money:

But these stash-house cases do cost someone money: federal taxpayers. As of
the date of this Order, there are 215,566 inmates in federal detention.... According to the Bureau of Prisons, the
average cost to incarcerate a federal inmate in 2011 was $28,893.40.... In fictitious stash-house cases, the ATF usually seeks a 15-year sentence.... These fake robberies therefore cost
federal taxpayers approximately $433,401 per defendant in incarceration costs
alone—not to mention investigative, prosecutorial, defense, and judicial resources.

Judge Wright concludes with a stinging rebuke of the federal government and how it has confused law enforcement with "crime creation."

The time has come to remind the Executive Branch that the Constitution
charges it with law enforcement—not crime creation. A reverse-sting operation like
this one transcends the bounds of due process and makes the Government “the
oppressor of its people.” .... In this case, the
Constitution will not tolerate subjecting an individual to prosecution for an imaginary
crime subject to a very real punishment—a punishment which rests entirely on ATF
agents’ whims.

It is entirely likely that the DOJ will appeal, but for now, once again, we send out kudos to Judge Wright for seeing a true scam for what it is and for not being afraid to actually use his power as a judge, who is in charge of upholding the Constitution, to push back on clear abuses of the Constitution.

from the it's-not-funny-if-it-might-happen dept

Here at Techdirt, I like to think that we have a pretty decent concept of humor. While each writer may differ somewhat, I generally have a fairly liberal view of what's fair game for humor and how edgy something can be and still be funny. You want to joke about the government building a planet-killing machine? Cool. Jokes about low-level government employees twisting your giblets? Niiiice. Jokes about drugs? How could you not joke about drugs? Jokes about shooting whistleblowers inserted into government law enforcement training manuals? Somehow that seems to stretch away from funny to frightening.

After months of anguished debate over mass shootings, gun control and Second Amendment rights, the Justice Department finds itself on the defensive after a training manual surfaced that suggests federal agents could face a firing squad for leaking government secrets. The online manual for the Bureau of Alcohol, Tobacco, Firearms and Explosives — complete with a photo of a turn-of-the-century firing squad — was obtained by The Washington Times from a concerned federal law enforcement official, and it immediately drew protests from watchdogs who said it showed a lack of sensitivity to gun violence and the continuing hostile environment toward whistleblowers.

Yes, the same federal government that has essentially declared war on whistleblowers, and from the very bureau in charge of helping to regulate firearms in this country, decided it was a-okay to joke about gunning down the very people who would make the country a better place out of a sense of duty. That's not funny. Why? Because I'm not all that clear exactly how many people in government wouldn't like to see that very kind of justice applied to some whistleblowers who already have come forward, namely Bradley Manning and Edward Snowden. We've already heard from former members of the NSA who enjoy joking(?) about killing Snowden and the fervor around Manning wasn't absent requests for his death. In other words, the joke isn't funny if we aren't sure it isn't going to happen.

Not to mention the potential for chilling speech from future whistleblowers.

Stephen Kohn, executive director of the National Whistleblower Center, said the DOJ has forgotten about the protections of the First Amendment, which covers leaks to the media, and that the photo could scare its employees into self-censorship. The photo “would have a chilling affect on legitimate speech. And some of the rhetoric used against whistleblowers could be construed as inciting to violence because they’ve turned up the rhetoric,” Mr. Kohn said.

In the words of fellow writer Tim Cushing, a government with this one's terrible history on protecting whistleblowers doesn't get to make the "don't talk or we'll shoot you in the face, LOL" joke. The image is reportedly being removed now that its use has surfaced, but whoever thought it was funny in the first place sucks at humor. Leave that to us idiots on the internet.